1. DAVID HENKIN
#6876
EARTHJUSTICE
850 Richards Street, Suite 400
Telephone No.: (808) 599-2436
Fax No.: (808) 521-6841
Email: dhenkin@earthjustice.org
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
CONSERVATION COUNCIL FOR
-profit corporation;
ANIMAL WELFARE INSTITUTE, a
non-profit corporation; CENTER FOR
BIOLOGICAL DIVERSITY, a nonprofit corporation; and OCEAN
MAMMAL INSTITUTE, a non-profit
corporation,
Plaintiffs,
v.
NATIONAL MARINE FISHERIES
SERVICE; UNITED STATES
DEPARTMENT OF COMMERCE;
PENNY PRITZKER, Secretary of
Commerce,
Defendants.
) CIVIL NO.
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) COMPLAINT FOR DECLARATORY
) AND INJUNCTIVE RELIEF
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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

2. Plaintiffs
Animal Welfare Institute, the
Center for Biological Diversity, and Ocean Mammal Institute (collectively,
complain of defendants
United States Department of Commerce, and Penny Pritzker, in her official
capacity as Secretary of the Department of Commerce, (collectively,
as follows:
INTRODUCTION
1.
By this Complaint, Plaintiffs seek to compel NMFS to comply with
§ 4321 et seq., in
connection with its promulgation of Five-Year Regulations and its issuance of
Letters
MMPA
s
under the Marine Mammal Protection Act
16 U.S.C. §§ 1361 et seq., authorizing U.S. Navy training and testing
activities in the HawaiiArea.
2.
The
HSTT Study Area extends over an area as large as the
combined land mass of all fifty of the United States. The HSTT Study Area
includes the at-sea portions of: (1) the Hawaii Range Complex, which
encompasses approximately 2.7 million square nautical miles of ocean around the
major islands of the Hawaiian Islands chain, extending from 16 degrees north
latitude to 43 degrees north latitude and from 150 degrees west longitude to the
2

3. International Date Line; (2) the Southern California Range Complex, which
includes San Diego Bay and encompasses approximately 120,000 square nautical
miles of ocean between Dana Point and San Diego, California; (3) the Silver
Strand Training Complex, which comprises training areas located on and adjacent
to the Silver Strand, a narrow, sandy isthmus separating the San Diego Bay from
the Pacific Ocean; (4) pierside locations in San Diego Bay, California and Pearl
and (5) a transit corridor for vessels and aircraft en route between
.
3.
The waters of the HSTT Study Area include some of the most
biologically significant and productive marine areas in the world. They are home
to at least forty-three (43) species of marine mammals, including five endangered
whale species (blue, fin, humpback, sei and sperm
false killer whales, endangered Hawaiian monk seals, and threatened Guadalupe
fur seals.
4.
While the Navy has conducted training and testing in the biologically
rich HSTT Study Area for decades, it recently announced plans to increase the
intensity and scope of its activities. Because of the inherent threat of harm to
marine mammals associated with Navy training and testing activities, the Navy
sought authorization for its proposed course of action from NMFS, the federal
agency responsible under the MMPA for protecting marine mammals.
3

4. 5.
On or about December 13, 2013, NMFS issued a record of decision
based on
August 2013 final Hawaii-Southern California Training and
, promulgating
Five-Year Regulations and issuing LOAs under the MMPA to authorize the most
environmentally destructive of the alternatives the Navy analyzed for training and
testing in the HSTT Study Area during the period December 26, 2013, through
December 25, 2018.
6.
Among other things, NMFS authorized Navy training and testing over
the next five years that will emit nearly 60,000 hours of
mid-frequency active sonar and over 450,000 hours of other mid-frequency sonar,
low-frequency sonar, high-frequency sonar, and other sound sources into the
biologically diverse waters of the HSTT Study Area.
7.
There is no scientific doubt that intense acoustic energy from Navy
sonar and other active sound sources can kill, injure, or significantly alter the
behavior of marine mammals, whose sensitive hearing and reliance on sound for
communication, foraging, and avoidance of predators make them particularly
vulnerable. Scientists have documented mass strandings; mortal injuries, including
lesions and hemorrhaging in vital organs; and behavioral changes in numerous
marine mammal species following naval sonar training exercises around the world.
4

5. 8.
In addition to the use of sonar and other active acoustic sources,
NMFS authorized the Navy to use more than 260,000 explosives in the HSTT
Study Area from December 2013 to December 2018.
9.
Underwater explosive detonations send shock waves and sound
energy through the water that can kill or injure marine mammals. Even where
animals escape physical injury, the use of military explosives can significantly
alter their behaviors.
10.
NMFS determined that, over the next five years,
s use of
sonar, other active acoustic sources and explosives for training and testing in the
HSTT Study Area will likely result in the deaths of up to 140 marine mammals,
cause permanent injury to more than 2,000 additional marine mammals, and inflict
additional harm to marine mammals nearly 9.6 million times by disrupting vital
behaviors such as migration, nursing, breeding, feeding, and sheltering. NMFS
and the Navy concluded that, during the same period, Navy vessels engaged in
training or testing in the HSTT Study Area may kill up to fifteen (15) additional
large whales, including endangered blue, fin, humpback, sei and sperm whales.
11.
Under NEPA, before NMFS authorized the Navy to inflict this harm
on protected marine mammals, it was obliged to make its decision based on an EIS
that examined a range of alternate courses of action, including alternatives that
could be pursued with less environmental damage. NMFS unlawfully failed to
comply with this legal mandate.
5

6. 12.
As described more fully below,
decision to authorize the
Navy to proceed with training and testing activities in the HSTT Study Area is
arbitrary, capricious, and contrary to law, in violation of the Administrative
Procedure Act
, 5 U.S.C. §§ 701 et seq. NMFS cannot lawfully
promulgate Five-Year Regulations or issue LOAs to authorize the Navy to kill and
injure marine mammals in the HSTT Study Area unless and until NMFS fully
complies with NEPA.
JURISDICTION AND VENUE
13.
The Court has subject matter jurisdiction over the claims for relief in
this action pursuant to 5 U.S.C. §§ 701-706 (actions under the APA); 28 U.S.C. §
1331 (actions arising under the laws of the United States); 28 U.S.C. § 1361
(actions to compel an officer of the United States to perform his duty); and 28
U.S.C. §§ 2201-02 (power to issue declaratory judgments in cases of actual
controversy).
14.
Venue lies properly in this judicial district by virtue of 28 U.S.C. §
1391(e) because this is a civil action in which officers or employees of the United
States or an agency thereof are acting in their official capacity or under color of
legal authority, a substantial part of the events or omissions giving rise to the
claims occurred in this judicial district, and plaintiff Conservation Council for
resides here.
6

7. PARTIES
Plaintiffs
15.
based, non-profit
organization founded in 1950. CCH has approximately
continental United States, and foreign countries.
-profit
membership organization with over 4 million members and supporters nationwide.
16.
threatened and endangered species, and to restore native Hawaiian ecosystems for
future generations. In this capacity, CCH and its members frequently testify at the
state legislature on various bills relating to the protection of the environment,
testify before administrative agencies on proposed regulations relating to species
conservation, communicate with Hawai
review and comment on environmental impact statements, support scientific
participate in service projects to protect native species and ecosystems, prepare
educational materials, including an annual wildlife poster featuring native
Hawaiian flora and fauna, and publish a periodic newsletter (Kolea, News from the
) discussing environmental issues
charter, and
7
i.

8. monk seal. Past posters have featured endangered humpback whales and other
marine life threatened by Navy activities in the HSTT Study Area.
17.
CCH participated in public review of and comment on the HSTT EIS.
uld cause less
informed
both NMFS and the Navy that
fatal flaws precluded either agency from
relying on the EIS to support decisions related to HSTT activities.
18.
CCH and its members have advocated increased protection for marine
life, including support for a statewide ban on lay gillnets and establishment of
marine protected areas, and have participated in beach clean-ups. CCH has also
produced a series of wildlife viewing interpretive signs to help protect whales,
dolphins, monk seals, sea turtles, coral reef fishes, and birds.
19.
CCH members include wildlife biologists and others who study and
enjoy native Hawaiian marine life, including whales and dolphins, monk seals, sea
turtles and other marine life.
including native Hawaiian practitioners, fishers, and gatherers who depend on
healthy marine ecosystems. CCH members who live
regularly
visit the islands to enjoy
this action on behalf of itself and its adversely affected members and staff.
8

9. 20.
is a national non-profit
charitable organization founded in 1951 and dedicated to reducing animal suffering
caused by people. AWI has approximately 31,000 members and supporters
Southern California.
21.
AWI engages policymakers, scientists, industry, and the public to
achieve better treatment of animals everywhere
in the laboratory, on the farm, in
commerce, at home, and in the wild. For wild species, AWI advocates for both
imperiled and common species.
22.
AWI focuses on improving the conservation of protected or imperiled
species by opposing human activities that cause harassment and habitat
degradation, fragmentation, and destruction. Through advocacy, litigation,
legislative efforts, research, and education, AWI acts to safeguard endangered or
threatened wild animals and their habitats and to implement humane solutions to
human-wildlife conflicts. AWI works with national and local governments and
other policymakers to protect animals, often by preventing actions damaging to
species and by promoting effective and safe wildlife protection laws and
regulations.
23.
Members of AWI include researchers, divers, surfers, whale watchers,
and other citizens who live in Southern California and the Hawaiian Islands, as
well as members who regularly travel there specifically because of the presence of
diverse marine species. These members regularly seek out opportunities to
9

10. observe, listen to, photograph and study marine wildlife, including marine
mammals, in
24.
waters.
AWI is involved in all aspects of protecting marine wildlife, including
cetaceans, in Hawai i and Southern California, from speaking and lobbying on
their behalf in international forums such as the International Whaling Commission,
Convention on Biological Diversity, and Convention on the International Trade in
Endangered Species of Wild Fauna and Flora, educating constituents and members
about cetaceans and the threats they face and monitoring domestic legislation and
research that may affect their well-being, to participating in litigation to curb the
U.
-frequency active sonar in antisubmarine exercises in
Hawai i waters, participating in at-sea research to assess marine mammal
responses to active sonar during U.S. Navy exercises, participating in U.S. Navy
and NMFS workshops on ocean noise, and providing public comment on
environmental documentation for Navy anti-submarine warfare training exercises.
AWI has participated in public review of and comment on
Draft
Overseas EIS for the Undersea Warfare Training Range,
Supplemental EIS for its Surveillance Towed Array Sensor System Low
Frequency Active Sonar,
of the Pacific Exercise
,
EIS/Overseas EIS for
its Undersea Warfare Training Range, and
EIS for the Hawaii Range Complex, among others.
10
EIS/Overseas

11. 25.
both
Most recently, AWI participated in public review of and comment on
HSTT EIS and
ze
. Among
mandate to consider reasonable alternatives that would cause less environmental
harm and to evaluate a t
NMFS
and
EIS to support decisions related to HSTT activities.
26.
AWI serves as the Pacific Islands representative to the International
Ocean Noise Coalition, a partnership of over 150 non-governmental organizations
( NGOs ) created to address the need for a global approach to combating humangenerated ocean noise. This umbrella organization serves the critical role of
relaying information to the United Nations on behalf of the participating NGOs.
AWI has consistently represented the International Ocean Noise Coalition at
meetings of the United Nations and has provided opening statements on the ocean
noise issue at meetings of the United Nations Open-ended Informal Consultative
Process on Oceans and the Law of the Sea, the First Global Integrated Marine
Assessment of the Regular Process, and the Ad Hoc Open-ended Informal
Working Group to study issues relating to the conservation and sustainable use of
marine biodiversity beyond areas of national jurisdiction.
11

12. 27.
The Navy training and testing activities that NMFS authorized will
adversely affect AWI
protect, study, observe, and enjoy marine mammals and other marine species in
that will be adversely affected by the
proposed HSTT activities. AWI brings this action on behalf of itself and its
adversely affected members and staff.
28.
-profit
corporation with over 40,000 members and offices in Los Angeles, California, San
Francisco, California, and other cities. The Center is dedicated to the preservation,
protection, and restoration of biodiversity, native species, and ecosystems. The
Center has members who reside throughout California
and who use
the areas that serve as habitat for the marine mammals and other wildlife harmed
and testing activities in the HSTT Study Area.
29.
Center members and staff include local residents with educational,
scientific research, aesthetic, spiritual, and recreational interests in marine
mammals and other species adversely affected
and testing
activities in the HSTT Study Area. For years, the Center, its members, and staff
have participated in efforts to protect and preserve the these species and their
habitat, including efforts to reduce ship collisions with whales and the
entanglement of whales in fishing gear along the Pacific Coast, litigation to protect
false killer whales, Hawaiian monk seals and sea turtles from harmful interactions
12

13. with commercial fishing
, and litigation to
address the harmful effects of Navy activities on marine mammals.
30.
The Center participated in public review of and comment on both the
Among other
mandate to consider reasonable alternatives that would cause less environmental
NMFS and
relying on the EIS to support decisions related to HSTT activities.
31.
and sought protection for many federally-listed threatened and endangered species
that inhabit the Pacific, including species that would be harmed by the HSTT
activities that NMFS authorized
and plan to continue to use, waters of the Pacific Ocean off Southern California
and Hawai i for observation, research, aesthetic enjoyment, and other recreational,
educational, scientific, recreational, conservation, spiritual, and aesthetic benefits
from observing marine species in the wild. The Center brings this action on behalf
of itself and its adversely affected members and staff.
13

14. 32.
Plaintiff Ocean Mammal Institute
is a non-profit
organization dedicated to furthering the protection of marine life and marine
ecosystems through ecologically sensitive research on cetaceans and their
interactions with humans.
impact of human marine activities, including noise pollution, on whales and
dolphins; (2) to apply the results of its research to protect marine mammals and
order to educate them about important conservation issues and empower them to
act responsibly.
33.
In furtherance of its mission, OMI conducts research in Hawaiÿi on
the impact of vessel traffic and noise on whales and dolphins and on their social
vocalizations; offers college-level educational programs in Hawaiÿi on cetaceans;
leads educational expeditions in Hawaiÿi waters to teach about cetaceans and
biodiversity; and runs research programs that provide interns with the opportunity
to directly observe the impacts of humans on cetacean behavior and habitat in
.
34.
Members of OMI
use and enjoy
and participants in
and plan to continue using and enjoying
programs regularly
for wildlife viewing,
education and scientific study the near- and off-shore waters that will be affected
by the Navy training and testing activities that NMFS authorized, and the wildlife
that inhabits those waters
14

15. environment directly affects OMI
and its ability to carry out its mission.
35.
In the past, OMI and its staff have consistently participated in
marine mammals and their
habitats, including giving lectures on the impact of ocean noise on whales and
other marine life; testifying against the use of parasail and jet skis in humpback
whale habitat; encouraging the Hawaiian Islands Humpback Whale National
Marine Sanctuary to develop whale protection plans; voicing their opposition at
hearings in Hawaiÿi to programs, including the use of active sonar, that adversely
affect whales and their habitat; participating in litigation to halt the testing of lowfrequency active sonar in Hawaiÿi; and providing public comment on NEPA
documentation for other Navy anti-submarine warfare training exercises, including
environmental assessment.
36.
OMI participated in public review of and comment on both the
s. Among other
to consider reasonable alternatives that would cause less environmental harm and
NMFS and the Navy
t
support decisions related to HSTT activities.
15

16. 37.
By inflicting death, injury and behavioral disruption on the marine
mammals found in the HSTT Study Area, the Navy training and testing activities
that NMFS authorized will frustrate OMI mission to protect marine mammals
and their environment. By reducing the number
waters available for study, the Navy activities that NMFS authorized will harm
OMI s mission to teach students how to do research on cetaceans. Furthermore, by
disrupting the migration, feeding, breeding, nursing and other behaviors of those
marine mammals that remain
authorized will frustrate O
, the Navy activities that NMFS
mission to conduct research on normal marine
mammal behaviors.
38.
To prevent the frustration of its organizational mission, OMI has
diverted its scarce resources from other efforts in order to promote public
roposed training and testing pose to marine
mammals in the HSTT Study Area and to urge, during the public review periods on
the HSTT EIS and on rulemaking under the MMPA, NMFS and the Navy to
protect marine mammals and marine environments by prohibiting, or at least
restricting, training and testing in biologically sensitive marine habitats. Having
failed to convince NMFS to do so, OMI now diverts limited resources to prosecute
this lawsuit, seeking to protect its organizational interests by compelling NMFS to
comply with NEPA.
16

17. 39.
Members of the plaintiff organizations live, work, and/or recreate in
the marine areas encompassed by the Navy training and testing that NMFS
authorized. They derive aesthetic, recreational, scientific, cultural, inspirational
and educational benefits from the marine ecosystems affected by these NMFSauthorized activities and from the existence of marine mammals and other wildlife
in the wild. Plaintiffs and their members observe and study these species, make
guided and unguided whale watching trips, and pursue underwater diving and
photography to observe these species in their native habitats. Plaintiffs derive
aesthetic, recreational, scientific, cultural, inspirational and educational benefits
from these activities and have an interest in preserving the opportunity to engage in
them in the future. The expectation and understanding that marine wildlife are
present
of these waters.
40.
Plaintiffs and their members will suffer irreparable injury to their
aesthetic, recreational, scientific, cultural, inspirational and educational interests
unless NMFS revisits its decisions authorizing training and testing in the HSTT
Study Area based on an EIS that complies fully with NEPA.
Defendants
41.
Defendant National Marine Fisheries Service is an agency of the
National Oceanic and Atmospheric Administration ( NOAA ) of the United States
17

18. Department of Commerce, and is sometimes
NMFS is the federal agency responsible for administering MMPA provisions that
, including the provisions
governing Five-Year Regulations and Letters of Authorization. NMFS is
responsible for complying with NEPA in connection with the promulgation of
Five-Year Regulations and the issuance of LOAs.
42.
Defendant U.S. Department of Commerce is the federal agency with
ultimate responsibility for implementing and enforcing compliance with provisions
of law that have been violated as alleged in this Complaint.
43.
Defendant Penny Pritzker is sued in her official capacity as the
Secretary of the Department of Commerce.
LEGAL LANDSCAPE
Marine Mammal Protection Act
44.
Congress enacted the Marine Mammal Protection Act out of concern
opulation stocks should not be
permitted to diminish beyond the point at which they cease to be a significant
Id. § 1361(2).
efforts should be made to protect essential
18

19. habitats, including the rookeries, mating grounds, and areas of similar significance
for each species of marine mammal from the adverse effect of man
45.
Id.
To accomplish its goals, the MMPA
mammals, unless the take falls within certain statutory exceptions. Id. § 1371(a).
Id. § 1362(13).
46.
For military r
(i)
any act that injures or has the significant potential to injure a
marine mammal or marine mammal stock in the wild [Level A
harassment]; or
(ii)
any act that disturbs or is likely to disturb a marine mammal or
marine mammal stock in the wild by causing disruption of
natural behavioral patterns, including, but not limited to,
migration, surfacing, nursing, breeding, feeding, or sheltering,
to a point where such behavioral patterns are abandoned or
significantly altered. [Level B harassment].
Id. § 1362(18)(B); see also id. § 1362(18)(C), (D).
47.
The Secretary of Commerce, acting through NMFS, administers the
MMPA with respect to the cetaceans (whales, dolphins and porpoises) and
pinnipeds (seals and sea lions) at issue in this case. Id. § 1362(12)(A)(i).
48.
Under MMPA section 101(a)(5)(A), NMFS may authorize the
incidental, non-intentional take of marine mammals during periods of up to five
consecutive years. Id. § 1371(a)(5)(A)(i)(I). In the case of a military readiness
activity, to authorize incidental
19

20. taking during each five-year (or less) period concerned will have a negligible
impact on such species or stock and will not have an unmitigable adverse impact
on the availability of such species of stock for taking for subsistence uses ...
Id.;
see also id. § 1371(a)(5)(F)(i).
49.
an impact resulting from the specified
activity that cannot be reasonably expected to, and is not reasonably likely to,
adversely affect the species or stock through effects on annual rates of recruitment
or survival
50.
If NMFS makes the required findings, it must promulgate regulations
that prescribe:
(aa)
permissible methods of taking pursuant to such activity, and
other means of effecting the least practicable adverse impact on
such species or stock and its habitat, paying particular attention
to rookeries, mating grounds, and areas of similar significance,
and on the availability of such species or stock for subsistence
uses; and
(bb) requirements pertaining to the monitoring and reporting of such
taking.
16 U.S.C. § 1371(a)(5)(A)(i)(II).
51.
of implementation, and impact on the effectiveness of the military readiness
n with the Department of Defense. Id. § 1371(a)(5)(A)(ii).
20

21. 52.
-step process
for issuing take authorizations under Section 101(a)(5)(A), which consists of (1)
promulgating specific regulations governing the take incidental to the specified
activities and (2) the issuance of Letters of Authorization under those regulations.
53.
If, after public review, NMFS finds that the requested taking by the
specified activity meets the statutory criteria, NMFS must promulgate specific
C.F.R. §
216.105(b).
54.
Id.
Authorization will be based on a determination that the level of taking will be
consistent with the findings made for the total taking allowable under the specific
Id.
validity and any additional terms and conditions appropriate for the specific
Id. § 216.106(c).
National Environmental Policy Act
55.
The National Environmental Policy Act of 1969 is
NEPA
21

22. officials and citizens before decisions are made and before actions are taken, so
that federal agencies can incorporate the wisdom gained into the action. Id. §
1500.1(b) (emphasis added). The NEPA process is intended to help public
officials make decisions that are based on understanding of environmental
consequences, and take actions that protect, restore, and enhance the environment.
Id. § 1500.1(c).
56.
The Council on Environmental Quality
has promulgated
rules implementing NEPA, which apply to all federal agencies, including NMFS
and the Navy. See 40 C.F.R. pt. 1500.
A.
Obligation to Prepare Environmental Impact Statements
57.
To accomplish its purpose, NEPA requires federal agencies to prepare
both
natural and physical environment and the relationship of people with that
e
Id. § 1508.14.
22

23. 58.
If more than one federal agency is involved in a project, one agency is
Id. §§ 1501.5, 1508.16. Other federal agencies with jurisdiction by law are
Id. §§ 1501.6,
1508.5. Federal agencies with special expertise with respect to any environmental
impact involved in a proposal (or a reasonable alternative thereto) may be
cooperating agencies. Id.
59.
A cooperating agency may adopt the EIS of a lead agency when, after
an independent review of the EIS, the cooperating agency concludes that the EIS is
legally adequate. Id. § 1506.3.
60.
is to
serve as an action-forcing device to insure that the policies and goals defined in
[NEPA] are infused into the ongoing programs and actions of the Federal
Id.
significant environmental impacts and [must] inform decisionmakers and the
public of the reasonable alternatives which would avoid or minimize adverse
Id.
61.
An EIS must discuss, among other things: the environmental impact
of the proposed federal action, any adverse and unavoidable environmental effects,
any alternatives to the proposed action, and any irreversible and irretrievable
23

24. commitment of resources involved in the proposed action. 42 U.S.C. §
4332(2)(C).
62.
Th
treatment to each alternative considered in detail . . . so that reviewers may
Id. § 1502.14 (a), (b). The core purpose of the
choice among options by the
63.
Id. § 1502.14.
implementing regulations specify that an
Id. § 1502.14(d). The CEQ has explained that
k, enabling
decisionmakers to compare the magnitude of environmental effects of the action
The CEQ has
emphasized that
on of such an analysis in the EIS is necessary to inform
the Cong
Id.
64.
for federal agencies to
consider a range of alternate courses of action
encourage productive and enjoyable harmony between man
and his environment
to promote efforts which will prevent or eliminate
24

25. B.
Public Involvement in Environmental Impact Statement Process
65.
Preparing an EIS provides important opportunities for public
involvement in federal agency decision-making, and NEPA commands federal
implementing their NEPA procedures. 40 C.F.R. § 1506.6(a).
66.
After publishing in the Federal Register a Notice of Intent to prepare
addressed a
Id. § 1501.7.
67.
The agency then prepares a draft EIS in accordance with the scope
decided on in the public scoping process and circulates the draft EIS for public
review. Id. §§ 1502.9(a), 1502.19. The agency must seek public comments on the
Id. § 1503.1(a)(4).
68.
The agency must assess and consider comments [on the draft EIS]
both individually and collectively and respond to these comments in the final EIS.
Id. § 1503.4(a); see also id. § 1502.9(b). Possible responses are to :
(1)
Modify alternatives including the proposed action.
(2)
Develop and evaluate alternatives not previously given serious
consideration by the agency.
25

26. (3)
Supplement, improve, or modify its analysis.
(4)
Make factual corrections.
(5)
Explain why the comments do not warrant further agency response,
citing the sources, authorities, or reasons which support the a
position ... .
Id. § 1503.4(a).
69.
The agency must file the final EIS with the Environmental Protection
Agency
, which then publishes in the Federal Register a notice of filing.
Id. §§ 1506.9, 1506.10(a). The agency must wait at least thirty days after
publication of this notice before making a decision on the proposed action. Id. §
1506.10(b)(2).
FACTUAL BACKGROUND
70.
On July 15, 2010, the Navy published in the Federal Register a notice
of intent to prepare an EIS for training and testing activities in the HSTT Study
Area. The notice identified the purposes of the proposed action as (1) achieving
with applicable environmental authorizations, consultations, and other associated
process to identify community concerns and local issues to be addressed in the
EIS. The notice stated that the Navy would invite NMFS to be a cooperating
agency in preparation of the EIS.
26

27. 71.
The public scoping period ended on September 14, 2010. During
scoping, a significant number of the participants expressed concerns about impacts
to marine mammals, primarily from the use of Navy sonar. In addition, members
of the public urged the Navy to ensure that its activities would not harm
endangered and threatened marine mammals and other species.
72.
In April 2012, the Navy submitted to NMFS an application pursuant
to the MMPA requesting two LOAs for the take of thirty-nine (39) marine
mammal species incidental to Navy activities to be conducted in the HSTT Study
Area from January 2014 through January 2019, one LOA for training activities and
another LOA for testing activities. The Navy submitted an addendum in
September 2012, at which time NMFS deemed the application complete.
73.
For its training activities, the Navy requested from NMFS
authorization to kill up to fifty-seven (57) marine mammals, including up to twelve
(12) large whale mortalities due to vessel strikes. It also sought permission to
injure (Level A harassment) 1,314 marine mammals and to disrupt marine
74.
For its testing activities, the Navy requested authorization from NMFS
to kill up to ninety-eight (98) marine mammals, including up to three (3) large
whale mortalities due to vessel strikes. It also sought permission to injure (Level A
harassment) 725 marine mammals and to
behaviors (Level B harassment) nearly 1.2 million times.
27

28. 75.
The Navy determined that vessels involved in training and testing
might strike and kill endangered blue, fin, humpback, sei and sperm whales. The
Navy could not say with certainty which species of large whale would be struck
and killed and, accordingly, requested from NMFS authorization to kill up to a
total of thirteen whales from any one of these endangered species over five years.
76.
On May 11, 2012, the Navy announced in the Federal Register the
availability of the draft HSTT EIS
for public review and comment. The
public comment period ran through July 10, 2012.
77.
The DEIS stated that the HSST EIS
request to obtain
It identified NMFS as a cooperating
because of its expertise and regulatory authority over marine resources
and stated that
rule-making process under the MMPA.
78.
The DEIS considered in detail only three alternatives. First, it
analyzed an alternative the Navy labeled
. Under this
alternative, the Navy would continue baseline training and testing activities and
force structure requirements as defined by previously existing Navy environmental
planning documents.
28

29. 79.
The DEIS also considered two nearly identical action alternatives.
consisted of the so-
No Action alternative, plus the
expansion of the HSTT Study Area boundaries to include areas where Navy
training and testing would continue as in the past, but have not been considered in
previous environmental analyses. In addition, Alternative 1 included adjustments
to training and testing requirements necessary to accommodate (a) the relocation of
ships, aircraft, and personnel; (b) planned aircraft, vessels, and weapons systems;
and (c) ongoing activities not addressed in previous environmental analyses.
80.
The DEIS identified the second action alternative
ed of Alternative 1, plus (a) the
establishment of new range capabilities, as well as modifications of existing
capabilities; (b) expansion of the type and increase in the tempo of training and
testing; and (c) establishment of additional locations to conduct activities between
the range complexes.
81.
The DEIS concluded that training and testing activities under either
Alternatives 1 and 2 would result in nearly identical harm to marine mammals,
with nearly 2.8 million animals killed, injured or otherwise harmed each year. As
than triple the number of marine mammal takes under the MMPA.
82.
There is general consensus in the scientific community that protecting
important marine mammal habitat is the most effective measure currently available
29

30. to reduce the harmful impacts of military activities on marine mammals. Despite
this, the DEIS failed to analyze any alternative that would place biologically
important areas off-limits to Navy training and testing.
83.
The DEIS incorporated into both action alternatives a single, identical
measure to provide limited protection to a portion of only one of the many
biologically important areas in the HSTT Study Area: the establishment of a
Humpback Whale Cautionary Area in a portion of the Hawaiian Islands Humpback
Whale National Marine Sanctuary
the
significance of the Hawaiian Islands for humpback whales, the DEIS did not
propose to ban training from even this small cautionary area during the few,
critical winter months when humpbacks and their calves are present. Rather, both
action alternatives would allow training in these important calving areas whenever
the commander of the U.S. Pacific Fleet deems it necessary with whatever
mitigation, if any, the commander whose job description does not require any
expertise in marine biology
84.
deems appropriate.
The Navy eliminated from detailed consideration in the DEIS any
alternative that would reduce impacts on marine mammals or sea turtles by placing
any other geographic or temporal constraints on training and testing activities
within the HSTT Study Area.
85.
During the public review period for the DEIS, numerous commenters,
30

31. alternatives that would protect other sensitive marine habitat areas for marine
mammals. Using information generated by
regarding
ers identified more than a dozen
and urged the Navy to revise its
environmental analysis to consider restricting training and testing in at least some
of these areas.
86.
Members of the public also submitted comments objecting to the
failure to evaluate in the DEIS
no a
that evaluated
U.S.C. §§ 1531 et seq..
87.
On October 12, 2012, NMFS published in the Federal Register notice
of its receipt from the Navy of a request for authorization to take marine mammals
incidental to the training and testing activities conducted in the HSTT Study Area
from January 2014 through January 2019. NMFS invited the public to provide by
November 5, 2012, information, suggestions, and comments
application and request.
88.
During the comment period, members of the public, including many
of the plaintiff grou
which precluded NMFS from relying
31

32. support permitting decisions under the MMPA. Among other things, the
rnatives that would reduce
harm to marine mammals by restricting or prohibiting training and testing activities
in sensitive marine habitats
DEI
BIAs. They also criticized the
oa
that evaluated the
authorization under the MMPA and ESA.
89.
On January 31, 2013, NMFS published in the Federal Register its
proposal to issue Five-Year Regulations and LOAs to the Navy to take marine
mammals incidental to training and testing activities in the HSTT Study Area from
January 2014 through January 2019.
intent to adopt
HSTT EIS
issuance of the HSTT regulations and LOAs, if doing so would be adequate and
appropriate.
were deemed
inadequate, NMFS would supplement the existing analysis to ensure its
compliance with NEPA prior to promulgating the final MMPA rule or issuing
LOAs.
90.
In its proposed rule, NMFS stated that it would authorize every one of
including permission to kill up to 155 marine mammals and permanently injure
another 2,039.
32

33. 91.
proposed rule noted
Map is in the process
of identifying areas and times where marine mammal species are known to
congregate for specific behaviors (such as feeding, breeding/calving, or migration)
or to be range-limited (such as small, resident populations). NMFS acknowledged
that these BIAs are useful tools for both planning and impact assessments and
noted that, once these
NMFS
92.
s [for marine
At the time it published its proposed rule, NMFS was aware that
CetMap had already completed several
its
website. NMFS failed, however, to propose any protections for those BIAs, other
than the very limited protection for the Humpback Whale Cautionary Area that the
Navy had discussed in its DEIS.
93.
NMFS invited the public to provide comment on its proposed rule by
March 11, 2013. During the comment period, members of the public, including
many of the plaintiff groups, alerted NMFS to
HSTT EIS, which precluded NMFS from relying
review to support permitting decisions under the MMPA. Among other things, the
harm to marine mammals by restricting or prohibiting training and testing activities
in sensitive marine habitats
. They also criticized the
33

34. that evaluated the
equests for incidental take
authorization under the MMPA and ESA.
94.
EPA. On August 30, 2013, EPA published in the Federal Register a notice of
availability of the FEIS. The notice stated that the review period for the FEIS
would end on September 30, 2013.
95.
The FEIS fails to cure the fatal flaws in the
alternatives
analysis. Like the DEIS, the FEIS evaluates in detail only three alternatives
so-
the
two nearly identical action alternatives
(Alternatives 1 and 2)
whose descriptions are virtually unchanged from the
DEIS. The Navy made only minor adjustments to the annual levels of certain
activities under the three alternatives, but the general types and locations of
training and testing did not change.
96.
The minor adjustments to training and testing did not result in any
significant change in
its proposed activities in the HSTT Study Area would inflict. The FEIS concludes
that training and testing activities under Alternative 2
alternative
would kill, injure or otherwise harm nearly two million marine
mammals each year.
34

35. 97.
Like the DEIS, the FEIS fails to evaluate a range of reasonable
alternatives that would reduce impacts on marine mammals by prohibiting or
restricting training and testing in various sensitive marine habitat areas. Instead, it
merely incorporates into both action alternatives the same limited protections for
the Humpback Whale Cautionary Area evaluated in the DEIS.
98.
In the portion of the FEIS containing responses to public comments
on the DEIS, the Navy failed to address each of the sensitive marine habitat areas
that public comments proposed for protection and then provide sources, authorities
or reasons to justify
s refusal to analyze any alternative that would limit
training or testing in that area. Instead, the Navy created a straw man that
characterized the comments as calling for a blanket ban on all training and testing
in any marine mammal habitat and a requirement that the Navy limit its activities
to only a severely constrained set of abyssal waters and surveyed offshore habitats.
ecies habitats and placing most
ocean waters off-limits was not a reasonable alternative did not justify its refusal to
evaluate in the FEIS a range of alternatives that place restrictions on training and
testing in at least some sensitive marine habitats.
99.
Ignoring that the FEIS purports to support both
incidental takes of marine mammals under the MMPA and Section 7 consultation
the
no a
35

36. alternative that evaluates the envir
100. In response to public comments criticizing its failure to analyze a true
no a
the Navy baldly asserts in the FEIS that it was justified in
considering
no a
101.
fact, take the requisite hard look at the impacts
associated with the full suite of
current activities in the HSTT Study
Area. As the FEIS concedes, what it calls the No A
and events as set forth in previously
102. A
-
No A
alternative include the portion of the Study Area to the west of the 179th meridian,
piers and shipyards located
n California, and San Diego
Bay. Training and testing including the use of active sonar and explosives
currently take place in these excluded areas. The impacts associated with those
36

37. training and testing activities were excluded
103. On September 20, 2013, the Navy filed with the EPA a corrected
version of the FEIS that included eleven (11) pages to one of the appendices,
which the Navy had omitted from its August 23, 2013 filing. None of these
additional pages cured the flaws in the FEIS discussed above.
104. On September 27, 2013, the Navy published in the Federal Register a
notice that it had issued the corrected FEIS and that the public review period was
extended to October 28, 2013.
105. During the public review period on the Final EIS, Plaintiffs submitted
alternatives analysis
satisfy its obligation under
NEPA to respond in the FEIS to comments on the DEIS. Plaintiffs urged the Navy
to withdraw the FEIS and circulate for public review and comment a revised
analysis that complies fully with NEPA. Plaintiffs noted that, in the meantime,
neither the Navy nor NMFS may lawfully rely on the FEIS to support any decision
regarding the proposed training and testing activities in the HSTT Study Area.
106.
or about December 13, 2013,
record of decision based on the
FEIS. In its record of decision, NMFS decided to finalize Five-Year Regulations
and LOAs authorizing marine mammal take associated with the most
37

38. environmentally destructive of the alternatives the Navy analyzed for training and
testing in the HSTT Study Area during the period December 26, 2013, through
December 25, 2018.
CLAIM FOR RELIEF
(VIOLATION OF NATIONAL ENVIRONMENTAL
POLICY ACT AND ADMINISTRATIVE PROCEDURE ACT)
107. Plaintiffs reallege and incorporate herein by reference each and every
allegation contained in all preceding paragraphs of this Complaint.
108. NEPA requires that an EIS analyze
as
well as reasonable alternatives to a proposed action. Despite having been urged to
do so by Plaintiffs, the Navy failed and refused to analyze in its FEIS
a range of reasonable
alternatives that would reduce impacts on marine mammals by prohibiting or
restricting training and testing in sensitive marine habitats.
alternatives analysis violates NEPA.
109. NEPA requires that federal agencies preparing a final EIS respond in
the final statement to public comments on the draft statement by one or more of the
following means:
(1)
Modify alternatives including the proposed action[;]
(2)
Develop and evaluate alternatives not previously given serious
consideration by the agency[;]
38

39. (3)
Supplement, improve, or modify its analysis[;]
(4)
Make factual corrections[; or]
(5)
Explain why the comments do not warrant further agency
response, citing the sources, authorities, or reasons which
.
40 C.F.R. § 1503.4(a). The Navy failed to comply with this mandate in responding
to public comments identifying flaws in the DEIS. The FEIS deficient responses
to public comments violate NEPA.
110.
legally deficient FEIS and reliance on
that FEIS to issue its Record of Decision, Five-Year Regulations and Letters of
Authorization regarding Navy training and testing in the HSTT Study Area during
the period December 26, 2013, through December 25, 2018, were arbitrary,
capricious, an abuse of discretion, not in accordance with law, and/or without
observance of procedure required by law within the meaning of the APA, 5 U.S.C.
§ 706(2).
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that the Court:
1.
Enter a declaratory judgment that Defendants have violated and are
violating the National Environmental Policy Act and Administrative Procedure Act
by adopting and relying on a legally deficient EIS to issue the Record of Decision,
Five-Year Regulations and Letters of Authorization regarding Navy training and
39

40. testing in the HSTT Study Area during the period December 26, 2013, through
December 25, 2018.
2.
Vacate
Record of Decision, Five-Year
Regulations and Letters of Authorization regarding Navy training and testing in the
HSTT Study Area during the period December 26, 2013, through December 25,
2018.
3.
Issue any appropriate injunctive relief.
4.
Award Plaintiffs the costs of this litigation, including reasonable
s; and
5.
Grant Plaintiffs such further and additional relief as the Court may
deem just and proper.
DATED:
Honolulu, Hawaiÿi, December 16, 2013.
EARTHJUSTICE
850 Richards Street, Suite 400
Honolulu, Hawaiÿi 96813
By:
_______________________
DAVID L. HENKIN
Attorneys for Plaintiffs
40